If you die without a will then you die intestate. It is often assumed that if you die intestate your estate passing to the State (Crown). This is not correct. In NSW, the Succession Act 2006 sets out what is to happen if you die without a will. Your estate will only pass to the State where you have no eligible relatives.
It is important that there is a thorough search to locate a will. This includes checking with any solicitors the deceased engaged and checking with the deceased’s bank and with the NSW Trustee and Guardian to see whether they hold a will or any documents setting out the deceased’s testamentary intentions. Once an exhaustive search has been made and no will has been found, then it will be presumed the deceased died intestate.
When to apply for a Grant of Letters of Administration
If there is property owned other than as a joint tenant (that is owed solely by the deceased or as tenants in common) or there are substantial assets an application needs to be made for Letters of Administration by one of the eligible relatives.
Where the deceased owned property as a joint tenant then the property automatically passes to the surviving tenant regardless of whether there is a will and the joint property is not included as part of the deceased’s estate.
Before obtaining Letters of Administration where the estate is small (less than $50,000) contact should be made with the asset holders to determine whether they require a grant to be obtained.
Who is an Eligible Relative?
Under the Succession Act the following persons are eligible relatives:
- Spouse including de-facto spouse
- Brothers and sisters
- Aunts and uncles
Statutory Order of Eligible Relatives (Intestacy Rules)
The Act gives primacy to the spouse and where there is a surviving spouse they are entitled to the whole of the estate even where there are surviving children (except where one or more surviving child or children is not the spouse’s child or children in which case the spouse receives the first $350,000.00 and 50% of the remainder with all of the children sharing equally in the remaining 50%).
Where there is no spouse the surviving children (including adopted children) share the estate equally. If a child of the deceased dies before the deceased and has surviving children, those children take the deceased’s child’s share equally. If the deceased child has no children than their share is divided among the deceased’s other children. If a child has an entitlement than they receive their share immediately even if the child is under the age of 18 years.
Where the deceased leaves no spouse and no children then the estate passes to the deceased’s surviving parents or parent. Where there is no surviving parent than the deceased’s brothers and sisters (including half-brothers and sisters). If the deceased has a brother or sister who died before them leaving a child or children who survived the deceased then the child or children (the deceased’s nieces and nephews) take their parent’s share of the deceased’s estate.
If the deceased leaves no spouse, child, parent, brother or sister or nieces or nephews then the grandparents of the deceased share the estate equally.
If the deceased leaves no spouse, child, parent, brother or sister, nieces of nephews or grandparents then the brothers and sisters of the deceased’s parents (aunts and uncle) are entitled to the whole estate equally. If an aunt or uncle dies before the deceased leaving a surviving child (a cousin of the deceased) then the cousin will share equally the deceased’s aunt or uncles share of the estate. This only extends to first cousins.
If the deceased dies without any of the above then the State is entitled to the whole of the estate. The State does have discretion to provide for any dependents of the deceased or any other person the deceased might reasonably had expected to provide for had he or she had made a will.
Applying for a Grant of Letters of Administration
An application is made to the Supreme Court for Letters of Administration. Where there is a spouse, the application is made by the spouse. Where there is no spouse, the application is made by an eligible person who will inherit the estate or part thereof. The steps to obtain Letters of Administration are similar to those required for a Grant of Probate and require prescribed forms to be filed with the Court.
Segelov Taylor can assist you to obtain Letters of Administration. We will provide you with advice as to whether Letters of Administration are required and who will inherit the estate.
Professional costs in obtaining Letters of Administration are regulated by the Legal Profession Uniform Application Act 2004 which calculates the professional costs according to the gross value of the estate’s assets. Segelov Taylor will provide to you full disclosure of the costs before commencing an application for Letters of Administration. See our fee policy for more information.